Beyond Containment – Confronting Racial Hierarchies in International Law: Rehearsals in Emancipation

[Raghavi Viswanath is a postdoctoral researcher and teaching fellow at College of Law at SOAS.

Claire Smith is an editor of Emancipating International Law and a PhD candidate at UvA.]

Emancipating International Law announces a lofty aspiration. Departing from academic scholarship about race, it invites readers to think about international law and race. In particular, how racism and racialisation enable violent legal containments, how they erase the knowledge of the racialised, and how they normalise a structural but also everyday unseeing of these processes. In the collection’s introduction, the editors speak about the book’s promise to break the recursive patterns of international law: of disembeding the Global Majority from legal agency by depoliticising or using spatio-temporal devices, the loud deafness of white neo-liberal academia, or even the exhausting laments of critical movements that international law has failed. 

This post takes up the invitation of the book — to continue conversations around race, its role, and its processes in international law — in a context different to the one we faced when the book was written. Here, we reflect on the continuities and discontinuities of race and international law and its perma-rehearsal of the status quo. We use the recent (re)turn to abolition and its conceptual framing in international law scholarship to ask: what are the conversations we may need to have in light of this moment?

Piecing together two postcards

In March this year, Ghana spearheaded a Declaration at the United Nations General Assembly for the recognition of global chattel enslavement as not only a crime against humanity, but the gravest of such crimes. The declaration itself is a clever legal instrument making far-reaching and conceptually deft observations about the structural and punitive work that race does within international law. Siutated in the broader work for reparatory justice including the  work of the CARICOM Reparations Committee and the African Union’s work on reparations for colonialism, deportation, and slavery, the declaration lays bare the legacies of the slave trade, and the role of continuing processes of racialisation in producing economic depravity, the culling of knowledge production, forced detention and trafficking, loss of heritage, sexual violence, and gendered discriminations. 

In many ways, the declaration is very much the kind of response that Emancipating International Law is holding out hope for. It is a text that is unafraid to point to the violences enacted through international law across space/time and breadth of harms, highlighting: 

“the enduring global consequences, including the large-scale destruction of African societies, the demographic re-engineering of continents and entrenchment of racialised inequalities that continue to structure international relations.”

The text rightly points out that epistemologies of white supremacy survive through international law “structural design”, implicating the application of legal principles in securing the maintenance of racial relations. For example, one author notes that:

“the application of statutory principles …systematically exploited the reproductive and maternal rights of African women and girls and subjected them to forced reproduction of the enslaved labour force.”

The declaration also nods to the jus cogens nature of the crime of enslavement and the lack of a statute of limitations for such crimes, laying bare that international law has always inflicted its containments through the legal, thriving in the daily dehumanisation of racialised peoples as they navigate unfair regimes of mobility, economic containment, labour, citizenship and status, social security, and access to health and justice.

Since its adoption, Ghana’s declaration has been hailed by many critical international lawyers as a form of interruption of the global legal order; a successful practice of the politics of refusal. While we applaud the nuanced and expansive declaration, we are also conscious of its re-inscriptive reflexes, including its embrace of international criminal law and its return to the painfully familiar white international legal rituals of co-operation, dialogue, remembrance, educational awareness, and UN mediation. Yet, international criminal law remains unmoved by the many protests against its racialising punitivity, and well documented albeit institutionally unanswered complaints of racial bias.  Many in the Global Majority have realised international criminal law’s smokescreen, disembedding crime from other bodies of international law, enabling specific violences to continue unchecked. In the same way as the declaration speaks to international law’s prolongation of slavery and its (ongoing) afterlives, international criminal law is no less constitutive to violent racialisation and enslavement. 

Knowing this, it is curious why Ghana would choose to make use of the same law and legal form that disenfranchises it in its pursuit of emancipation. One explanation is visibility. From law students studying at the University of South Pacific in Vanuatu knocking on doors of the International Court of Justice or the Marshall Islands suing nuclear Western states for the breach of their disarmament obligations, the Goliathian allure of international law is still prominent. Through this visibility, many actors vie for a “strategic foothold in mainstream institutions”. Pursuing international law for such reasons of tactic or strategy is fair game.  However, the risk remains that in embracing the form and syntax of international law, the declaration may also become a party to the replications and interpellation that occurs through international law’s institutions and the reproduction of violence and the making of shades of the non-human.

Our experience this year complicates this narrative. Earlier in March, we found ourselves in an auditorium at Kabarak Law School in Kenya, a University still grappling with its own debts to postcolonial authoritarianism. We were attending a workshop on ‘abolishing international law’ where we sought to trouble the temporal and subjective devices international law relies upon to expose the machinations of its carceral logics. When we asked the class of undergrad students whether ‘the abolition of slavery a success of international law?’, students laughed with our colleague, Dr Humphrey Sipalla, pithily retorting: “the abolition of slavery was simply empire adjusting to empire.” Sipalla’s comment was underlined by some students questioning international law’s misplaced celebratory legacy of chattel slavery. They easily identified the abolition movement’s complicity in the creation of ongoing resource wars and ethnic conflicts in Congo and Nigeria, the dialectical arrangements between trade regimes and working conditions of the Global Majority, and its role in creating profit-making outposts (including Kenya) for colonial extractivism through racialisation.  

The students’ responses were deeply revocative of lorde’s warning:

“to define and seek a world in which we can all flourish. ….for the master’s tools will never dismantle the master’s house. They may allow us to temporarily beat him at his own game, but they will never enable us to bring about genuine change.”

Where is the refusal to international law’s allegiance to sovereignty, with its racialising effects, and the conceptual traps that work to re-produce conditions of penalty? What happens to the embrace of counter-hegemonic tools when calls for reparation are made within the rubrics of (racial) capitalism? Falling short of transformation, or the creation of alternatives, it merely offers pause or works to reinscribe the legitimacy of the status quo. The declaration risks being another case of ‘the changing same’, as Amiri Baraka would say.

Rehearsing abolition or repeating emancipation?

In writing our respective chapters for this collection, we came to very different conclusions. For one of us, a sense of renewed hope in doing international law, albeit the need to do it very differently; for the other, that international law is inherently irredeemable. Both of us, however, share a common ground: a deep distrust in any impulse to emancipate international law and the awareness that our separate conclusions require both the destruction of the status quo and the building of alternatives. It is in this enterprise that abolition becomes a driving force and it is on this idea that we conclude. 

Abolition can be understood as an excavation of the underpinning punitive logics of international law, in search of alternative imaginaries. Strikingly, the declaration invokes abolitionist praxis. It calls on Africana abolitionist traditions and the prison movements from 1970s America, crediting their resistance to the ‘world-breaking’ (and dialectical European ‘world-making’) epoch of enslavement through armed struggles, strategic litigation, and counter-movements. Indeed, the spirit of abolition is the revolutionary act of dismantling systems of confinement, whether it is the prison or the carceral spaces that spring beyond, from universities to the global supply chain, demands that the outcomes we seek transcend international law’s own paucity of imagination and forms.

In our reading of abolition, we do not identify an automatic compulsion to discard the tools of the old; still, there is no absolute fidelity to them either. What it does require, however, is attention beyond international law’s forms and prescribed outcomes, working with those suffering international law’s myriad carceralities to secure different, arguably more world-breaking outcomes. As Moten reminds us, improvisation is the lifeforce of resistance. Abolitionist revolutions, like those that came before it, are bound to combust, but their success lies in sparking practice that provokes and puts into action the practices for a different world. Improvisation itself is not exempt from practice. Just as jazz musicians rehearse together to learn each other’s styles and create extraordinary improvised music, liberation workers must, too, rehearse how we challenge entrenched norms, making the move from repetition to making anew. 

Survival, after all, “is not an academic skill.” It is a political and social way of being that is impossible to capture in theory or technocracy. Take Sudan, where the mobilisation of the Sudan Emergency Response Rooms became the backbone of the (extended and ongoing) crisis response providing food, shelter, medical care and protection, largely funded through mutual aid. Despite being ‘forgotten’ by the international community this community-led response, succeeding the neighbourhood-based Resistance Committees integral to the 2018-2019 revolution, emerged in sharp contrast to the judicial response of the International Criminal Court. In the Prosecutor v Abd-Al-Rahman (“Ali Kushayb”) case, one of the victim-witnesses voiced what many in the Global Majority feel in the face of international law’s abandonments: “it’s not about justice now, its about human lives.” In the Response Rooms, abolition is enacted not through repetition, but through the complete improvisation of a new reality — where people become their own benefactors — whether in resistance to or in spite of international law. 

From ‘within’ international law, Radha D’Souza’s traveling court of intergenerational crimes that visits various Global Majority interlocutors and re-tries the East India Company for its climate crimes, to those engaging with international law on their own terms such as the Baka people from Congo or the Irulars from southern India who attribute legal personality to their local goddess and ancestral forest. These scholars and peoples are subjecting the postcolonial State’s regimes of property law to novel, often indigenous registers of justice and rights. Others, by contrast, reject international law’s languages of carcerality; we are thinking here of fishermen from borderlands in the Indian subcontinent who trade cattle, cargo, food, and even identity documents across State borders in pursuit of commercial partnerships and ties of friendship, completely rejecting the jurisdictionary carceralities of the State. 

Each rehearsal, re-enactment, and improvisation operates to invoke a different outcome, but perhaps most importantly works to recognise and perfect the modes of solidarity across struggles international law makes disparate. These rehearsals in resistance and transformation far exceed international law’s capabilities and require “pivoting the idea of justice from law” to praxis. While it remains concerning, but unsurprising, that these pursuits remain absent from international law, the global majority continues to make and remake worlds anew. Perhaps as its death knell rings (again), and in the midst of now perpetual crisis speak, international law should seek inspiration to assist rather than resist its own reimagination.